1. A New Day: Understanding How the Changes to the MHRA Will Affect Your School District
Joseph M. Wientge, Jr.
Littler Mendelson, P.C.

2. Joseph M. Wientge, Jr. Littler Mendelson, PC St. Louis, Missouri

3. Agenda MCHR – Description Changes to the MHRA
Overview of Administrative Process
Charge Guide: What You Need to Know
Review Charge
Report to proper parties
Conduct fact-finding
Early resolution or mediation
Prepare response

4. EEOC Charge Filings on the Rise In FY 2016
2011: 99,947
Highest Total Ever!
2007: 82,792

5. EEOC Causes of Action by Statute
Applicable Statute
Number of Lawsuits
2015
2016
Title VII 83 46
ADA 53 36
ADEA 14 2
Equal Pay 7 5
GINA 1

6. EEOC Statistics: FY 2016 by Category

7. EEOC Charges of Discrimination in Missouri
EEOC (FY 2016): 2,147 Total Charges of Discrimination
Race: 808 (37.6%)
Sex: 646 (30.1%)
Age: 523 (24.4%)
Disability: 706 (32.9%)
Retaliation: 1,166 (54.3%) (fastest-growing type of claim since 2009)

8. MCHR Complaints in Missouri: FY 2016

9. Recent Verdicts and Settlements
Wilkins v. St. Louis University (2016) - $4.85 million for race discrimination
Lin v. Ellis/Wash. U. (2017) -$769,000 for failure to accommodate
Scully v. Hickman Mills Sch. Dist. (2016) - $747,582 for age discrimination
Baldridge v. KC Pub. Sch. (2016) –
$806,075 for failure to
accommodate

10. Missouri Human Rights Act – What it was….
Missouri Human Rights Act was originally passed in 1957 and was amended in 1978 and then again in However, judicial interpretation has led to many of the changes in the MHRA.
Liability Standard
“Contributing factor” is that which contributes a share of anything or has a part in producing the effect– Judicial Interpretation.
Individual Liability
“Employer” can be an individual –Judicial Interpretation.
3) No Business Instruction – Judicial Interpretation.

11. Missouri Human Rights Act – What it was….
4) No Limitation on Damages –Statutory.
“Garden Variety” – emotional damages can be proven without medical evidence and prohibits discovery on medical causation – Judicial interpretation.
Statutory Limitation on Punitive Damages limited to five (5) times amount awarded – Statutory.
Addition of Attorneys fees to Multiplier –Judicial Interpretation.
5) Challenging Timeliness of Charge
Challenging the propriety of the issuance of Right to Sue Letter must be made by Writ against the MCHR – Judicial Interpretation.

12. Missouri Human Rights Act – …What it is now!
Amendments to the Missouri Human Rights Act through Senate Bill 43
Liability Standard
“Motivating Factor” - employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action.
2) Who is Employer
Employer – is person who employs six or more employees, but specifically excludes an individual.

13. Missouri Human Rights Act – …What it is now!
Limitation on Damages
Damages include:
Back pay;
Emotional damages, front pay, and punitive damages with limitations depending the number of employees:
$50,000 for employers with more than 5 employees, but less than 100 employees;
$100,000 for employers with more than 100 employees, but less than 200 employees;
$200,000 for employers with more than 200 employees, but less than 500 employees; and,
$500,000 for employers with more than 500 employees.
Attorneys fees and costs.

14. Missouri Human Rights Act – …What it is now!
Business judgment instruction
In federal court this instruction instructs the jury that:
You may not return a verdict for the plaintiff just because you might disagree with the defendant’s decision or believe it to be harsh or unreasonable.
Challenges to Timeliness of Charge
An employer can now also challenge the timeliness of an employee’s claims in a lawsuit before the court in the suit that is pending without having to file a writ against the MCHR.

15. Missouri Human Rights Act – …What it is now!
Potential for Challenges: “Motivating factor” is defined as: the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action. However, another section of SB 43 provides “the plaintiff shall bear the burden of proving the alleged unlawful decision or action was made or taken because of his or her protected classification and was the direct proximate cause of the claimed damages.” Section R.S.Mo. Seems to require more for a plaintiff to prevail than the “motivating factor.”

16. EEOC/MHRA Charge Guide: What You Need to Know

17. Overview of the Pre-Lawsuit Administrative Process
Employee files a complaint or “Charge of Discrimination” (dual filing with EEOC)
Notice and Service of Charge on Employer
Agency Investigation
Agency Determination (“probable cause” or not?)
If probable cause, agency may decide to hold public hearing or initiate its own lawsuit
If no probable cause, agency will issue “right to sue letter”
Lawsuit by Employee

18. Worksharing Agreements and “Dual Filing”
EEOC has “worksharing agreement” with MCHR, so they don’t duplicate each other’s work
This means charging party automatically gets benefit of dual filing
1st Filed in MCHR – will file with EEOC automatically, but retain jurisdiction over investigation
1st Filed in EEOC – will file with MCHR, but generally retain jurisdiction over investigation

19. EEOC’s Digital Charge System
Optional
Secure Online Portal
Eff. January 1, 2016
District or Counsel can:
Receive Notice of Charge
Review Charge
Respond to invitation to mediate
Submit Request for Information
Submit Position Statement

20. Steps Following Notice of Charge
Review Charge
Report to proper parties
Conduct fact-finding
Consider early resolution or mediation
Prepare and submit response to agency

21. STEP 1: Review of the Charge

22. Sample Notice of Charge

23. Step 1: Review of the Charge (cont.)
Review for basic information
Who is the claimant?
Who are the alleged offenders?
Are any witnesses identified?
When did the alleged violation occur?
Are any documents identified?

24. Step 1: Review of the Charge (cont.)
Determine your response obligations.
These are set out in the Notice of Charge sent by the agency
Typically, includes a Statement of Position (more on this below)

25. Deadlines MHRA – Charge must be filed within 180 days
EEOC - Charge must be filed within 300 days
Lawsuit must be filed within 90 days of issuance of Right to Sue letter
MHRA – lawsuit must also be filed within 2 years of
the act in question

26. STEP 2: Report
Internally – superintendent, HR, IT, legal department
Externally – insurance carrier, counsel

27. STEP 3: Fact Investigation
Gather the Facts
Interview the alleged offenders
Get their “side of the story.”
Explore their history with claimant and the decision-making process.
Interview the offender’s superiors
Determine if they may have any exposure due to their involvement in the conduct or decision.
Interview all potential witnesses; consider taking recorded statements
Identify “similarly-situated” employees. Determine if the complained-of conduct was applied neutrally.
Inspect and photograph the location of the incident(s) where appropriate

28. STEP 3: Fact Investigation (cont.)
Gather the Documents
Personnel files
Written complaints
Investigation files
s, text messages, and security video about the incident(s)
Employee handbook and training materials
Non-discrimination/harassment policies
Grievance procedures
Progressive discipline policy
Attendance and payroll records
Relevant statistical data
Litigation Hold: Maintain all relevant documents until the matter is fully resolved

29. STEP 4: Early Resolution or Mediation
MCHR
10 days from Notice of Charge to accept
100% voluntary
In-person or over the telephone
Don’t have to respond to charge
MCHR or private mediators?

30. STEP 4: Mediation If you did nothing wrong, why mediate?
PROS:
Possible to resolve case quickly and inexpensively (court process takes about 2.5 years)
Process will be “confidential”
According to EEOC, 77.9% are successful
Consider for current employee

31. STEP 4: Why Not Mediate CONS:
Others may file Charges, especially if current employee
Might be an extraordinary waste of time and money
Position statement resulting in dismissal may cost about the same or less than mediation settlement
Warning: Dismissal after Position Statement is unusual
Undermines management decisions
Could be extortion
Claimant could be fishing for information and defense strategies

32. STEP 5: Respond to the Charge

33. STEP 5: Contents of the Response
Position Statement: Employer’s “take” on the allegations, both factual and legal
Documents: Those specifically requested by the agency, or those that you believe agency should consider
Additional Info: As the agency may request
Extensions of time are commonly granted; however, the EEOC is becoming more strict

34. Agency Investigation Agency has subpoena power
Methods of discovery include: witness/employee interviews, site inspections, document requests, and interrogatories
Interviews
Tape Recording: EEOC will probably tape record; employer should also
Right to counsel for management-level employees
Attorney should be involved in this process, may need to make objections if investigator advises that it will be used as evidence

35. Agency Determination Options
No Cause: unable to establish violation of the law
Others: untimely charge, unable to locate CP, facts alleged do not state claim
Cause Finding: short letter, introductory and concluding paragraphs are standard

36. MCHR HEARINGS Applicable statute - § 213.075, RSMo.
At Commission’s discretion; very rarely utilized
Hearing conducted by panel of members of Commission or their designated “hearing examiner”
Decides case on the merits – Commission can order employer to pay back pay, make accommodations, pay statutory penalties up to $10,000, cease and desist the discriminatory practice, etc.
In response to notice of hearing  contact any attorney. Employer can – and should – elect to have case heard by civil jury in Circuit Court. See § , RSMo.

37. MCHR HEARINGS: Frequency

38. The Right-to-Sue Notice
A “right-to-sue letter” is issued by the agency to the claimant and authorizes the filing of a civil lawsuit.
It ends the agency’s investigation.
Suit must be filed within 90 days of:
Date of the letter (MCHR);
Date of Claimant’s receipt of letter (EEOC).

39. Right-to-Sue: Example